USCA1 Opinion

September 21, 1992

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

___________________
No. 92-1250
RAUL RODRIGUEZ,
Plaintiff, Appellant,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES,
Defendant, Appellee.
__________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
___________________
___________________
Before
Breyer, Chief Judge,
___________
Campbell, Senior Circuit Judge,
____________________
and Cyr, Circuit Judge.
_____________
___________________

Salvador Medina De La Cruz on brief for appellant.

__________________________
Daniel F. Lopez Romo, United States Attorney, Jose Vazquez
_____________________
____________
Garcia, Assistant United States Attorney, and Thomas D. Ramsey,
______
________________
Assistant Regional Counsel, Region I, Department of Health and
Human Services.

__________________
__________________

Per Curiam.
___________
decision
Health

affirming
and Human

under the
for

Plaintiff appeals

Services that

of

obtaining

applied for

of

to work.

appellant was

severe enough to

disability

of

not disabled

416(i), 423(d),
insurance benefits.
benefits for

1981 which allegedly rendered him

The administrative law

benefits, concluding

district court

the Secretary

disability insurance

back condition dating from

unable

decision

Social Security Act, 42 U.S.C.

purposes

Appellant

a final

from a

judge (ALJ) denied

that, while appellant's

prevent him

impairment was

from continuing to

work as

truck

driver, he

had

engage in light work.

this

finding, we

objections

to

the residual

to

Because the record as a whole supports

affirm.

the

functional capacity

Appellant

ALJ's

raises a

number

of

we

consider

in

ALJ's

decision

is

decision, which

turn.1
Appellant
inconsistent

first
with

appellant could
Appellant

claims

testimony

that
by

the
a

not engage in any

argues that

vocational

expert that

substantial gainful work.

the medical

evidence shows

that his

back pain is at least frequent and that the vocational expert

testified
performing

that frequent
any

pain would

substantial

gainful

prevent appellant
work.

Actually,

from
the

____________________
1. The ALJ also determined that appellant's mild dysthymic
mood disorder did not render appellant disabled.
Because
appellant does not contest that finding, we confine our
discussion to issues relating to appellant's back condition.
-2-

vocational expert testified that appellant would be unable to

perform any work
both

frequent and

in the

national economy if

severe.

The

ALJ

the pain

were

basically found

that

___
appellant's

pain

appellant's

back

______
was

not

severe when

condition,

though

he

concluded

painful,

was

that
not

"disabling painful condition" and that appellant's allegation

of pain

was credible

longer

perform

only to the

heavy

or

medium

condition of the hypothetical

that

the

pain

be

objection is not

severe

extent that
work.

he could

Therefore,

no
the

posed to the vocational expert

was

well taken.

not

met,

and

See Lizotte
___________

appellant's

v. Secretary of
_____________

Health and Human Services, 654 F.2d 127, 131 (1st Cir. 1981)
__________________________
(affirming the

ALJ's determination

perform certain

that the

tasks where, although the

claimant could

vocational expert

had determined that the claimant could not perform such tasks
if certain restrictions in his capabilities were assumed, the
ALJ had found that the assumed restrictions

did not actually

exist).
Next,

appellant states

showed that he had

that

tests

certain

that at

tests

The clinical tests to which appellant

refers measured the difficulty or

indicate

clinical

very limited residual functional capacity

to stand, walk or sit.

when flexing

specific

joints.

pain appellant encountered

Appellant's medical

times appellant

scored positive

(at other times, the tests were negative).

-3-

records
on those

Nowhere do

appellant's treating doctors indicate that

a positive result

would mean that appellant's residual functional

limited,

nor

do

they
his

appear

to

activities

have

recommended

limit

appellant

points

physician,

Dr.

difficulty

dressing and undressing himself, that observation

that

Garayalde,

is not controlling

the

any

that

appellant

out

in

capacity was

way.

Although

Secretary's

examining

observed

that

appellant

since it described appellant's

had

condition

as of the year after appellant's eligibility for benefits had

expired.

The only

evidence

in lay

terms

of appellant's

functional capacity for the relevant period was provided by a

residual functional

capacity assessment

form filled out

Dr. Hernandez, a medical consultant to the Secretary.

on his

review of

medical records,2 Dr.

by

Based

Hernandez concluded

____________________
2. Dr. Hernandez's assessment, made in January 1988, does
not state specifically that he reviewed appellant's entire
medical record. The assessment form indicated, however, that
his assessment reflected appellant's condition as of December
1986, which would have required his review of appellant's
medical records as of that time.
Dr. Hernandez's statement
of the medical findings on which he based his assessment
mirrors primarily language found in Dr. Garayalde's 1987
report, but also reflects language only found in appellant's
other medical records. (He uses the term "PVM spasm", which
does not appear in Dr. Garayalde's report; one of appellant's

earlier medical records uses the term "paravertebral spasm.")

Moreover, the Secretary's brief on appeal states that Dr.
Hernandez reviewed appellant's "medical record" in making his
assessment, and the Secretary's initial denial of benefits,
which relied on Dr. Hernandez's residual functional capacity
assessment, indicated that both appellant's medical records
for 1982-87 and Dr. Garayalde's report were considered in
reaching that determination. We conclude that there is ample
evidence here
to believe that
Dr. Hernandez reviewed
appellant's entire medical record in making his residual
-4-

that

appellant's strength

lift or

carry up to 20

was somewhat

limited:

pounds and could

he could

frequently lift or

carry 10 pounds; he could stand,

walk or sit about six hours

in

could

an

eight-hour

weights.
could

day; and

he

Dr. Hernandez also found

stoop

only

push

or pull

light

that, although appellant

occasionally, he

could

climb,

balance,

kneel, crouch, crawl, reach, handle, and engage in other fine

motor

activities

with frequency.

treating physicians provided

assessment, the ALJ was
uncontradicted
the

residual

Rodriguez Pagan
_______________

Here,

no residual functional capacity

entitled to rely on

assessment in determining
functional

where appellant's

capacity to

Dr. Hernandez's

that appellant had

perform

light work.3

v. Secretary of Health and Human Services,

________________________________________

819 F.2d 1, 2-3 (1st Cir.

1987), cert. denied, 484 U.S. 1012

____________

(1988); cf. Berrios Lopez v.

__________________
Services, 951
________

F.2d 427,

Secretary of Health and Human

______________________________

430-32 (1st Cir.

1991) (discussing

____________________
functional capacity assessment.
We note, however, that we
would not assign much evidentiary weight to an assessment
that did not take into account a claimant's entire relevant
medical record, especially where, as here, the Secretary's
own medical assessments were based
on examinations or
evaluations
conducted fairly
long after
the relevant
disability period.
3. Dr. Hernandez's residual functional capacity assessment
also has evidentiary value because he appears to have
reviewed appellant's medical status carefully before making
his assessment. Correspondence in the record indicates that
Dr. Hernandez asked Dr. Garayalde to provide an evaluation of
appellant's muscle weakness, information which was not in Dr.
Garayalde's initial report and which Dr. Hernandez stated was
necessary
before he could
assess appellant's residual
functional capacity.
-5-

the

circumstances

examining,
functional
assessment);

under

non-testifying

which an
medical

capacity assessment
Arroyo
______

v.

ALJ

over a

may

credit a

consultant's

non-

residual

treating physician's

Secretary of Health
and Human
__________________________________

Services,
________

932

supportably

relied

assessment

of

physicians

had

would

not

F.2d

on

87-88 (1st
the

1991)

permitted

the

though

opinions).
ALJ

determination on

the circumstances

(the

functional

consultants

expressed contrary

have

Cir.

residual

non-examining

functional capacity
data under

82,

to

ALJ

capacity
treating
Indeed, we

make

residual

the basis of

raw test

present here.

See Rosado
___ ______

v.

Secretary of Health and Human Services, 807 F.2d 292, 293-94

_______________________________________
(1st Cir. 1986) (the

ALJ could not draw his

about a claimant's functional

not

analyzed by

contrary

capacity from raw medical data

physician in

medical report by

own conclusions

functional

terms where

an examining physician described

the claimant's functional capacity in relevant, nonconclusory

detail); Berrios
_______
796

v. Secretary of Health and Human Services,

_______________________________________

F.2d 574, 576 (1st Cir. 1986) (the Appeals Council could

not base its denial of benefits on its interpretation of raw,

technical

data

contrary

report

contained

in

interpreted

one medical
medical

data

report

where

in

functional

terms).
For

the same

reason,

appellant's objections

that

he

could not perform light work requiring standing for six hours

-6-

day and that the ALJ needed

a medical advisor to help him

interpret appellant's medical record

are without merit.

Dr.

Hernandez acted essentially as medical advisor, analyzing the

raw medical data to determine appellant's residual functional
capacity.

No other physician analyzed appellant's functional

capacity.
could

Thus, Dr.

perform light

Hernandez's assessment
work

professional testimony.
______________________
appellant's testimony
work

was not

was uncontradicted by any other

_________________________________

Furthermore, the ALJ determined that

that he could not engage in even light

fully credible.

showed that appellant sometimes

seeking

medical

that appellant

treatment

Appellant's

medical records

went for many months without

for

his

conservative intervention (medication

condition
and physical

improved his condition when

it became painful.

this

decision

evidence,

the

ALJ's

and

not

to

In
fully

that

therapy)
light of
credit

appellant's testimony as to the intensity of his pain and its

effect

on

his

physical

entitled to our deference.

capacity

was

reasonable

and

is

See Irlanda Ortiz v. Secretary of

_________________
____________

Health and Human Services, 955 F.2d 765, 769 (1st Cir. 1991)
__________________________
(although appellant had an

objective medical impairment that

could

reasonably

be

expected

supportably decided that

credible

to

indicated,

the

among

the

ALJ

the claimant's complaints were

not

extent
other

condition improved

to

produce

alleged
things,

since

that

and that in some

pain,

medical

at

records

times claimant's

years claimant received

-7-

no treatment at all for his back condition).

claims that the ALJ
argument" the
surgery or
that
that a

should not have "mentioned" or

fact that

appellant was reluctant

further physical

Social Security
claimant has

could remove

Appellant

therapy.

Ruling 82-59

Appellant

permits

"used in
to undergo
points out

a determination

not followed prescribed

the alleged disability only

also

treatment that

after the claimant

is notified that refusing treatment could result

in the loss

of disability benefits and is given an opportunity to undergo

treatment.4
given an

Appellant argues that he was not so informed or

opportunity for

mention the

treatment.

Although

appellant's reluctance to undergo

the ALJ

did

surgery or to

continue physical therapy when describing appellant's medical

history,

he did

not

"find" that

appellant

had failed

to

follow prescribed treatment, nor did he base his finding that

appellant

was

determined

that

not

disabled

appellant

on
was

that
not

fact.
disabled

Rather,
because

he
his

residual functional capacity permitted him to engage in light

work.

Thus, one of the conditions for applying the Ruling--

____________________
4. The policy statement prefacing the Ruling indicates that
the determination that a claimant has not followed prescribed
treatment essentially constitutes a determination that the
claimant is not disabled for purposes of receiving benefits
under the Social Security Act. See SSR 82-59, reprinted in
___
____________
[Rulings 1975-82]
Soc. Sec. Rep. Serv.,
at 793 ("An
individual who would otherwise be found to be under a
disability, but who fails without justifiable cause to follow
treatment prescribed by a treating source which . . . can be
expected to restore the individual's ability to work, cannot
be found to be under a disability.").
-8-

that

the claimant's

gainful

activity--did

impairment
not exist

precludes
here.

any

substantial

For that

reason,

Ruling 82-59 does not apply, and appellant's objection is not

on target.5
Appellant further

complains

that the

ALJ

"discarded"

without explanation
under Avery v.
_____

the testimony he was

Secretary of Health and Human Services,

_______________________________________

F.2d 19 (1st Cir. 1986).

797

We conclude that the ALJ adequately

considered the Avery factors.

_____
appellant's

required to obtain

First, he thoroughly assessed

medical history

and

subjective

complaints

of

pain, and in so doing described "the nature, location, onset,

duration, frequency, radiation
pain.

and intensity" of appellant's

The medical record persuaded him that appellant had a

severe impairment with attendant pain.

But he found that the

impairment was not as severe or continuous as

the disability

described in Appendix 1 of 20 C.F.R. Part 404, Subpart P, and

that appellant's
Second, the

pain

was not

as

intense as

he

alleged.

ALJ determined that heavy and medium lifting and

____________________
5. We note, however, that we see no reason why an ALJ should
not consider a claimant's refusal to undergo treatment when
determining issues other than that of the actual existence of
the alleged
disability, e.g., when
making credibility
determinations.
A claimant's refusal to continue therapy
that is shown to have alleviated pain would certainly be
relevant in judging the severity of the pain alleged by the
claimant. Cf. Irlanda Ortiz v. Secretary of Health and Human
_________________
_____________________________
Services, 955 F.2d 765, 769 (1st Cir. 1991) (the Secretary
________
could infer from appellant's failure to seek any medical
treatment at all that appellant's pain had not been as
intense as alleged).
-9-

carrying

were

aggravating

activities that

factors" under

would be

Avery.
_____

"precipitating and

He noted,

for example,

that the lifting of cement bags in April 1987 had exacerbated

appellant's back

condition.

appellant should

engage only in light

Third,

although

the

ALJ

medication for his back

testimony

about

appellant's

Accordingly,

did

found

that

lifting and carrying.

describe

appellant's

pain by name or dosage,

he elicited

appellant's

medical records,

not

he

medication

and

concluding that

reviewed

appellant had

been treated "conservatively" with muscle relaxants and antiinflammatories with "good results . . . and no side effects."
Fourth, the ALJ noted that appellant had also undergone other
treatment, i.e.,
and

no

side

functional
pain and

physical therapy, with "good results

effects."

capacity,

Fifth,

crediting

physical limitation

he

analyzed

. . .

appellant's

appellant's allegations

only to

the extent that

of
they

showed that appellant could not perform heavy or medium work.

Crediting Dr. Hernandez's
complaints,

he determined

engage in light work.

report over appellant's subjective

that appellant

Last, the ALJ considered

appellant's daily activities, which

appellant's

limited

would be

able to

evidence of

had been offered to show

physical capacity.

He

rejected that

evidence because

it described appellant's condition

as of a

time when appellant's eligibility for disability benefits had

-10-

already

expired.

Thus, the ALJ considered each of the Avery

_____

factors, and we see no error in his decision on that score.

Finally, appellant complains that the ALJ emphasized the
absence of
and

motor or

claims that

establish

there

part of the

applicant's
was

the

his decision,

that a

in order

claimant
to verify

Appellant's contention is without merit.

five-step procedure

determine

equalled

the

relevant regulations.
have

requirement

motor deficit

qualification for

required to

condition

is no

a neurological

alleged back pain.

As

neurological deficits in

"consistent

determining an

disability benefits,

whether or

severity
He

used in

not the

criteria

appellant's

listed

concluded that appellant

clinical

neurological

required by Section 1.05(c) of the Listing.

the ALJ

in

the

did not

deficits

as

He was not found

with neurological sensory, reflex and motor abnormalities . .

. ."

Because this language reflects the language used in the

regulations, it was entirely appropriate.

404,

Subpart

detailed

P,

Appendix 1,

description

examination

of

findings.

description of . . .

1.00B

the
The

See 20 C.F.R. Part

___
("There

orthopedic
findings

and

should

must be

neurologic
include

motor and sensory abnormalities, muscle

spasm, and deep tendon reflexes.");

1.05C ("1. Pain, muscle

spasm, and significant limitation of motion in the spine; and

2.

Appropriate radicular

distribution of

significant motor

loss with muscle weakness and sensory and reflex loss.").

-11-

Accordingly,
court.

we

affirm the
______

judgment

of

the district

-12-